Fresh hope for Kenyan tea pickers in compensation fight with Finlays
A tea plucking machine in operation at a tea estate in Kericho county.
It has been a long and torturous journey for over 2,000 Kenyan tea pickers who have sued their employer James Finlay before a Scottish court as they seek compensation for poor working terms and injuries sustained during work.
The staff both former and current, secured a first win last week when a judge in Scotland allowed a petition for the case to proceed in UK despite fierce opposition by the multinational, which argued that the matter would be best handled in Kenya.
Staff have faced multiple applications, both in Kenya and Scotland as those opposed to the case plan to scuttle the compensation bid.
In Kenya, two cases are pending over similar claims. One of them was filed by 1,044 current and former workers at the Employment and Labour Relations court, seeking to stop the case in Scotland arguing that it was filed in the wrong court, as the proper forum to address the matter is the High Court.
Another suit was also filed challenging expert witnesses from the UK coming to Kenya for a tour of the tea estates, to inspect the working conditions.
The win last week was, however, a major victory for the workers as trial judge Lord Weir agreed that although a Legal Aid Act came into force in Kenya in 2016, it is not yet fully implemented and the group members are unlikely to be able to secure legal aid and assistance in representation to advance their claims in Kenya.
Lord Weir further ruled that contingency fees are prohibited under Kenyan law and group members would be potentially liable for adverse awards of costs.
“Although there are provisions within the Kenyan Civil Procedure Rules 2010 which permit a group’s interests to be canvassed through a single pursuer or defender (an example given being where injured passengers on a bus might seek to bring common claims), there are no provisions equivalent or comparable to the rules governing group proceedings in Scotland,” Lord Weir ruled as he allowed the workers to proceed with the case.
James Finlay had opposed the case arguing that a cost-effective forum Work Injury Benefits Act (Wiba) for the resolution of any disputes the group members have with the employers is available in Kenya.
The firm further argued that the Kenyan legal system offers workers an effective route to prosecution of any claims they may have against the employers.
“In any event, resolution of the group members’ claims under WIBA does not require a lawyer. It is free to the group member to pursue,” the company argued.
Lord Weir heard evidence from the company’s managing director, Mr Simeon Hutchinson, Mr Daniel Kirui, the human resource director, Mr Reuben Langat (environmental health and safety and sustainability officer), Prof Githu Muigai and Dr Musa Nyandusi, the Director of Occupational Safety and Health.
For the workers, Lord Weir heard evidence from Ms Anne Ireri, the executive director of the Federation of Women Lawyers (FIDA) in Kenya, who in her witness statement, expressed the opinion that the Scottish court was the best forum in, which the group claimants were most likely to achieve substantial justice.
FIDA, she said, did implement a programme involving tea estate workers in Kericho county in 2019, which was aimed at creating awareness amongst female tea workers on their rights and creating advocacy platforms for them to pursue legal assistance in support of the same.
Mr Eric Theuri, Law Society of Kenya president, and senior counsel Wilfred Nderitu gave legal opinions, in support of the case being heard in Scotland.
The company informed the court that it employs about 4,800 staff, a majority of whom live on the company’s estate or the surrounding area.
The firm also said it has established 12 primary schools, two secondary schools, and 31 early childhood development centres within their estate, and cater for all costs associated with those institutions, save for teachers hired by the government.
The company said it also provides free healthcare through 13 dispensaries across the estate.
The multinational had urged the Court of Session in Edinburgh to decline to hear the case arguing that all complainants reside in Kenya, the tea estates are based in the country as are all material investigations of the alleged harm.
In a decision dated July 11, Lord Weir ruled that although Kenya would be appropriate to determine the case, there is a real risk that the tea firm workers may not obtain substantial justice litigating their claims before the Employment court.
“I am, however, satisfied that, for substantially the reasons set out by Mr Nderitu and Mr Theuri (both testified as legal expert witnesses), there is a real risk that the group members will not obtain substantial justice were they to have to litigate their individual claims before the ELRC for damages at common law. That is a conclusion I can only make based on cogent evidence. Unchallenged evidence is not necessarily cogent evidence,” Lord Weir ruled.
Lord Weir also dismissed the claim by James Finlay that the allegations by the workers involve injuries or conditions, which are covered by Work Injury Benefits Act (Wiba) and which must, therefore, be dealt with under its compensation regime.
“It follows that the jurisdiction of this court has not been excluded by agreement. The defenders’ plea of no jurisdiction must, therefore, be repelled,” the court ruled.
James Finlay said it was incorporated as a Scottish company in 1925 and its business, in so far as relevant to this litigation, is in Kenya.
